Answering Emails After Hours? You May Be Entitled To Overtime

What did we ever do before cell phones? Well, for one thing, we probably worked a lot less. In a recent study by The Pew Research Center, 62 percent of us have smartphones and 33 percent have tablets. In the past three years, we've gone from spending an average of 22 minutes per day on our mobile devices to 82 minutes per day. Much of that time is spent checking and responding to emails and texts from work.

Are you getting paid for all that extra work? Probably not. But maybe you should. Here's why.

What the law says:The Fair Labor Standards Act says that most employees must be paid time and a half (one and a half times their regular hourly rate) for all hours worked over 40 per week. For non-government employees, they can't be offered comp time instead, but must be paid overtime. Employers make mistakes on this that include averaging hours over more than one week, misclassifying employees as exempt, deducting for breaks that weren't taken, assuming all salaried employees are exempt, misclassifying employees as contractors, and forcing employees to punch out but keep working. If your employer is doing any of these things, they probably already owe you overtime. You may have even more rights under your state's law.

You're exempt from overtime if you are salaried, make at least $455 per week, and are either an executive, an administrative employee, a professional or a skilled computer employee. You're also exempt if you do outside sales. Some highly compensated employees are exempt.

There are other exemptions, and exceptions to all these exemptions. And I won't get into the details, but I've written more about overtime. So let's assume, for purposes of this article, that you aren't exempt but use your cell phone to check and respond to calls, emails and texts when you aren't at work.

Are you entitled to be paid for your time? Probably. Let's look at some possible scenarios:

On call: If you have to remain on call at your employer's premises or so close to the premises that you can't use the time effectively for your own purpose, then you are considered to be working while on call and you must be paid for that time. However, if you are required to carry a cell phone, beeper (does anyone carry beepers these days?), or you're allowed to leave a message where you can be reached, you may not have to be paid unless you are actually called. Here's an example the Department of Labor gives:

An assisted living facility has four LPN wellness coordinators who are paid hourly. They rotate being on call each week. They are required to carry a cell phone and be within 45 minutes of the facility when they are on call. They are not paid for all time spent carrying the cell phone but are paid for time spent responding to calls and time when they have returned to work at the assisted living facility. Does this comply with the FLSA? Yes.

Taking work home: Whether or not working from home is pre-approved, you have to be paid if your employer "suffered or permitted" you to work. In another example, the Labor Department explains:

An hourly paid office clerk is working on a skilled nursing home's quarterly budget reports. Rather than stay late in the office, she takes work home and finishes the work in the evening. She does not record the hours she works at home. The office manager knows the clerk is working at home, but since she does not ask for pay, assumes that she is doing it "on her own." Should the clerk's time working at home be counted? Yes. The clerk was "suffered and permitted" to work, so her time must be considered hours worked even though she worked at home and the time was unscheduled.

Checking email: If your work duties require you to check emails while off duty, you should be paid. In a recent lawsuit, a Chicago police officer who claimed that he had to use his BlackBerry 24/7, a court allowed him to turn it into a class action, meaning that he can also sue for his co-workers who are in the same boat. If your supervisor emails you, and you respond after hours, then they are "suffering or permitting" you to work after hours, and you need to be paid.

Responding to texts: Sure, it only takes a few seconds to check and respond to text messages. But a supervisor who is texting you late in the day or after hours knows that you're working and should make sure that you are paid for those hours. Those few seconds add up if you are constantly responding to texts from home.

Phone calls: If you have to take calls about work in your spare time, that's work that needs to be paid for. That doesn't mean that you should be paid for the time you spent coordinating a happy hour with your work buddies, but if it's work-related, it's work you should be paid for.

Deminimis: An exception to being entitled to pay for work at home is if it's considered de minimis (meaning minimal), or so small that it's impractical to record the time. There's no hard-and-fast cutoff to determine what is de minimis, but we're talking about a few seconds or minutes a week. If your work at home totals less than 5 to 10 minutes per week, it may be considered de minimis. If you aggregate all your time spent in a week and it's over 10 minutes, then you might be able to claim that time.

So, what do you do if you are working after hours and think that you should be paid? Here are some things you should start doing right now to make sure you are paid what you are owed:

Keep track of your time: Your cell phone probably logs how long calls lasted. You should write down how many minutes each text, call and email took, with times and dates.

Report time accurately: Now that you've started keeping track, report it. If you have to turn in daily or weekly time sheets, don't forget your time at home. If you have a time clock, then find out how the employer wants you to report time worked at home and report it. If your employer prohibits you from reporting your at-home work time, keep track at home.

Reconstruct any older time worked at home: If you've been working at home without pay for awhile, start looking at your old texts, emails and call logs and figure out how much time you worked each day. You can go back as far as 2-3 years. Then you have a choice to make. You can present it to your employer and ask that they pay it, or talk to the Department of Labor or an employment lawyer in your state about it. If you have any doubt about whether you are exempt or whether the time is de minimis, you might want to check first before you demand payment from your company. If you weren't paid money that's owed, your best estimate, backed up with any records you have of the emails, calls and texts may be enough for a court or the Department of Labor to determine that you are owed money.

Remedies: If you sue and win, you could be entitled to be paid twice the amount you are owed, plus your attorney's fees and costs. A court could also enjoin (a court order telling them to cut it out) your employer from committing further violations. The Department of Labor could also fine your employer up to $10,000, and repeat violators face possible imprisonment.

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues that you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs. While I can't answer every question here, your question might be featured in one of my columns, or an upcoming live video chat.